Abstract
In this compelling book, labor law scholar Raymond Hogler has captured the fear and anxiety of unions in the face of concerted assaults by conservative and business groups and Republican-controlled state legislatures in post–Great Recession America. This plays out, as conservatives continue to pursue legal action against union security in federal courts and while Republicans in some Midwestern states with strong union traditions attack collective bargaining rights through the passage of right-to-work (RTW) laws. Nationally, there are now twenty-five states that have such laws. To unions, RTW legislation has been cancerous and, according to Hogler, is the most significant factor explaining union decline since World War II.
Taking a long historical view, starting in 1806, Hogler contends that culture explains the politics of American labor law. Culture is the engine of our perceptions regarding the way the world operates. American culture originates from its exceptionalist beginnings that legitimized the ownership of humans as a form of property . . . [where] the indelible traces of that system are evident in geographical differences in values and outlook. (p. viii)
It should be no surprise that the post–World War II drive for RTW arose primarily in the South.
Hogler frames his narrative around the theme of conflict between individual interests (“liberty”) and group cohesiveness (“freedom”) in the workplace. This tension is historically embedded in a larger national contradiction: a “schizophrenic national ethos promoting on the one hand a dedication to ‘life, liberty, and the pursuit of happiness,’ and on the other, the ownership of human beings as a kind of property” (p. 15). Advocates of RTW coalesce around conflicts involving individual versus collective rights and obligations, states rights, and the proper means of distributing productive wealth. No longer, however, are these cultural values limited to the former Confederacy.
The book’s core is contained in three chapters. Chapter 2 focuses on the evolution of the law of collective action between 1806 and 1935 when judge-made common law punished workers for “criminal conspiracy.” Judges, developed a rationale that gave the advantage to individuals instead of the group. Eventually, interests of property and liberty coalesced into a powerful story about American society, and courts used that story to deflect labor’s efforts at economic and political reform. (p. 17)
During the Great Depression, the political and legal climates turned more favorable toward collective labor action. Chapter 3 examines Senator Robert Wagner’s role in the passage of the National Labor Relations Act (NLRA), his strategy for union security, and the political challenges he faced. Company unions posed a dilemma for him. The business lobby pressured President Roosevelt to establish “proportional” representation under the National Industrial Recovery Act (NIRA), but “exclusive” representation was critical to the efficacy of the closed shop and essential to Wagner’s statutory scheme. Wagner prevailed, but opponents’ misrepresentations of his position on the role of state law enabled the inclusion of Section 14(b) of the Taft-Hartley Act (1947) that permitted states to pass RTW laws and later proved to be organized labor’s undoing. Specifically, opponents of union security supported states’ superordinate interest in regulating closed shops. But, according to Hogler, Wagner “never contemplated the proposition that states should have the legal authority to prohibit closed shops, because the constitutional doctrine of the time precluded it . . .” (p. 81).
Chapter 4 traces the RTW movement from the late 1930s through 2013. Labor’s growing power led to state initiatives to curb union power. Colorado’s Labor Peace Act (1943) was the most comprehensive. Although somewhat muted by labor’s opposition, the final version placed severe restrictions on union security and gave the state authority over compulsory union membership.
Chapter 5 analyzes the effects of RTW laws on economic development and union deterioration. Hogler argues that RTW laws, not only explain a significant part of union decline but they have provided their supporters, “substantial cultural validation . . . as a proxy for the unencumbered, empowered self to pursue the rewards bestowed by free markets” (p. 160). Hogler takes down this “liberty canard” and offers support instead for unions and communitarian values arguing, “Workplace organization is associated with greater levels of trust, and in turn, to more equitable levels of income distribution and other issues of social justice such as fair workplaces and opportunity for advancement” (p. 169).
Hogler concludes with ideas for union revitalization that counter the trope of less government, lower taxes, and a return to “real” American values. Among them is a new narrative for labor that would use “freedom” in a way that “centers on the idea of group cohesion, cooperative endeavors, and belonging” and seeks to “further the rights of all and the attainment of the common good” (p. 166). This narrative and the application of political power would lay the groundwork for new union organizing. Hogler also offers a handful of labor law reforms. One would modify Section 14(b) to remove a state’s exemption from federal jurisdiction of union security coverage and establish uniformity that would prevent states from competing on lower labor standards. A second would restrict union dues payments to actual collective bargaining expenses, while a third calls for elections to approve union security clauses under Section 9(e). The latter would address concerns of liberty and choice. Hogler also advocates for expanded workers’ rights, including universal just-cause protections. While these legal and political options seem like long shots now, Hogler believes “organized labor has little to lose by trying a new strategy. The old approach of pouring resources into federal elections and legislative wish lists is a dead end” (p. 175).
The End of American Labor Unions provides labor educators and union leaders with a fresh perspective to consider union decline and revitalization. While the extent of labor law in the book might challenge the nonspecialist, Hogler’s main arguments are straightforward and accessible.